The snappily-titled Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill was read a second time on 3 September. We have already highlighted some of the concerns of the charity sector – which, obviously, includes religious charities – and the second reading debate gave the Government a chance to address some of them.
Part 1: “consultant lobbyists”
In principle, Part 1 of the Bill should not apply to religious charities (nor, indeed, to charities generally) at all, since it is about registration of “consultant lobbyists” – and it is inconceivable that a commercial consultant lobbyist as described in the Bill could be a charity (or that a charity could be a commercial consultant lobbyist). However, in reply to an intervention from Barry Sheerman (Huddersfield, Lab/Co-op), who complained about the omission of (eg) law firms that engage in lobbying as well as legal work, the Leader of the House said during the second reading debate that:
“We are not leaving out a large number of people who engage in consultant lobbying. If people have a substantial business involving such lobbying, they should register, and that will be made clear” (Hansard 3 Sept 2013 c 172: emphasis added).
What this means in practice, however, remains to be seen: precisely what is “a substantial business”?
Part 2: non-party campaigning
As to Part 2, the Electoral Commission sent a briefing to MPs in advance of second reading stating that
“… the Bill creates significant regulatory uncertainty for large and small organisations that campaign on, or even discuss, public policy issues in the year before the … general election, and imposes significant new burdens on such organisations”.
The Leader of the House responded that
“… technically, the uncertainties that are being talked about could in large part be construed to relate to existing legislation rather than the Bill that we are bringing forward. In truth, it is the responsibility of the Charity Commission, where charities are concerned, and the Electoral Commission for all third parties, to work together to ensure the soundness of the definitions in the Bill (Hansard 3 Sept 2013 c 171).
That would appear to be correct so far as it goes. Part 2 of the Bill is very largely a series of amendments to the current law set out in the Political Parties, Elections and Referendums Act 2000 relating to “recognised third parties”. The Bill changes the definitions of “controlled expenditure” and the appropriate limits of that expenditure but it does not change the definition that relates to spending being for electoral purposes if it is intended to or has the effect of procuring or promoting support for candidates of political parties.
So if at the time of a general election a faith-group campaigns on, say, child poverty or Trident and in doing so incurs controlled expenditure under s 85 of the Political Parties, Elections and Referendums Act, then it will in any case have to observe the existing limits on such expenditure. What clause 27 of the current Bill does is to halve the existing expenditure limits – it does not introduce any new concept as such. Moreover, the Leader of the House pointed out that the Charity Commission guidance is clear that charities should not undertake party political activity:
“To that extent, there are very limited circumstances in which charities might consider it essential, from their point of view, to register their spending as spending for an electoral purpose. I am at a loss to understand how they think the Bill could have an adverse impact on their ability to campaign on policies and issues for their charitable purposes” (HC Deb 3 Sept 2013 c 174).
Charity resources must be expended in pursuit of the charity’s objects and not otherwise; and no charity could have party-political campaigning as a charitable object.
As to campaigning on specific local issues, the Leader of the House pointed out that campaigning by third parties in an election period was not normally done for electoral purposes but in order to convey their views about policies and issues – which was perfectly legitimate. However, the issue was not whether expenditure was being undertaken during an election period but whether the expenditure was being undertaken in an election period and for electoral purposes.
The Government appears to be drawing a distinction between a charity simply engaging with the policy of a political party and expressing views on it or attempting to influence the policy of a party (which would not be caught by the terms of the Bill) and a charity seeking to promote the election of a particular political party or candidate or otherwise to enhance their standing at an election (which would be caught – and which, in any case, might conflict with existing charity law).
There appear to be two remaining area of possible concern. Clause 26 of the Bill would amend the guts of s 85 of the Political Parties, Elections and Referendums Act 2000, which regulates the activities of third parties in relation to election campaigns. the new version defines “election campaign”, in relation to a third party, as a campaign conducted by the third party “for election purposes”, which in turn means for the purpose of or in connection with
“promoting or procuring electoral success at any relevant election for one or more particular registered parties, one or more registered parties who advocate (or do not advocate) particular policies or who otherwise fall within a particular category of such parties, or candidates who hold (or do not hold) particular opinions or who advocate (or do not advocate) particular policies or who otherwise fall within a particular category of candidates”.
The sting in the tail is that a “course of conduct” for the purposes of the subsection “may constitute the doing of one of those things even though it does not involve any express mention being made of the name of any party or candidate” [my italics]. The problem is that a charity conducting what it intends to be an apolitical campaign on a policy issue might in all innocence fail to predict that its conduct engaged the amended s 85.
The second area of concern is the possibility of a local campaign colliding – again, unintentionally – with a by-election in which a particular local issue achieves national importance. For example, there are environmental groups (some of which are no doubt charities) that are currently campaigning against the HS2 Rail Link: what would happen if a by-election were called for a constituency on the proposed route?
On 5 September the Political and Constitutional Reform Committee published a report ahead of the Bill’s committee stage on 9 to 11 September. The report:
- supports the aims of increasing transparency in lobbying and effectively and fairly regulating third-party campaigning but states that the Bill is “seriously flawed” because of inadequate consultation and a lack of pre-legislative scrutiny;
- concludes that the definition of “consultant lobbying” is so narrow that not only would it exclude in-house lobbyists (which was the Government’s intention) but it would also exclude the vast majority of third-party lobbyists;
- urges the Government to expand the register to include in-house lobbyists and the provision of advice on lobbying, as well as direct contact with Ministers and Permanent Secretaries; and
- recommends that the Bill be extended to include lobbying of Special Advisers and Senior Civil Servants.
The PCR Committee believes that Part 2 of the Bill generally (on non-party campaigning) and particularly the definition of spending “for electoral purposes” are confusing; and it criticises the Government for leaving its interpretation largely to the Electoral Commission, arguing that the Government has not provided a satisfactory account of the basis on which the new levels for registration and limits on expenditure for third parties have been set. The Committee concludes by urging the Government temporarily to withdraw the Bill in favour of a prelegislative scrutiny committee, using the text of the existing Bill as a draft, which would produce an improved Bill for reintroduction within six months.
The Chair of the Committee, Graham Allen MP, described the Bill as “an object lesson in how not to produce legislation”. In short, it looks as if the Committee might have preferred something like the EU’s Transparency Register, which operates on the basis that, irrespective of legal status and with very few exceptions, all organisations and self-employed individuals engaging in activities falling within the scope of the Register are expected to sign it.
Rather than withdraw the Bill, the Government has taken the unusual step of announcing in advance of the committee stage the date of the Commons remaining stages. The two days provisionally allocated for report and third reading are Tuesday and Wednesday, 8 & 9 October: the first two days after the Commons returns from the party conference recess.
PS: I should make it clear (in the interests of transparency!) that I am a working director in a consultant lobbying company that will certainly have to register when the Act (in whatever form) comes into force. As a consultancy we have no problem with that whatsoever: transparency can only be for the good of everyone: Parliament, the public, clients – and lobbyists.